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HomeMy WebLinkAboutOPINION - Chapter X Compliance Orr 6 2024 THE CIRCUIT COURT IN THE STATE OF OREGONy. VVM IN THE COUNTY OF CLACKAMAS STATE ex rel NEW LOOK ) DEVELOPMENT LLC, an Oregon limited ) Case No. 24CV03746 liability company, ) ) Plaintiff-Realtor ) OPINION and ORDER v. ) CITY OF LAKE OSWEGO, a municipal ) Corporation, ) ) Defendant, ) and ) MICHAEL E. KOHLHOFF, ) ) Intervenor. ) ) This matter came before the court for trial on May 28,29, and 30,2024. The court received evidence and heard testimony, considered the arguments of counsel and received post trial briefings. NOW,THEREFORE,the court finds and rules as follows: I. Constitutionality of Chapter X Plaintiff first raised this issue in a footnote to its joinder to the City of Lake Oswego's motion to reopen and reconsider this court's ruling that Chapter X is a land use regulation. The issue was further argued during trial and in post trial briefings. Article IV, section 1(2)(d), Oregon Constitution provides in part: "An initiative petition shall include the full text of the proposed law or amendment to the Constitution." 24CV03746 OP nion Case No. 24CV03746 Opinion and Order 118498400 Pagel IIIHIUII�IUIiUIUUI1 Article IV, section 22, Oregon Constitution provides in part: "No act shall ever be revised, or amended by mere reference to its title,but the act revised, or section amended shall be set forth and published at full length." According to plaintiff, Chapter X violates these provisions because the full text of that municipal initiative was not published in the Clackamas County voters'pamphlet. As a textual matter, neither provision mentions the voters'pamphlet at all. Nor has plaintiff pointed to any case which indicates these provisions require inclusion or publication in the voters'pamphlet. As to Article IV, section 1(2)(d), this distinction is dispositive. The petition contained the full text, including"red lines"of the proposed charter amendment. Exhibit 210. The primary case on which plaintiff relies, Kerr v. Bradbury, 193 Or App 304 (2004), analyzed whether the text of petition certified by the secretary of state met the requirements of section 1(2)(d), and did not address the voters'pamphlet at all. The initiative petition for Chapter X complied with Article IV, section 1(2)(d). For similar reasons, plaintiff's Article IV, section 22 argument fails. Plaintiff fails to point to any authority that Article IV, section 22 requires publication in the voters'pamphlet. In fact, that would be a strange interpretation as Article IV, section 22 was first adopted by the voters in 1902 but the first Oregon voters'pamphlet was not published until 1904 (See the state of Oregon Library services website). And, of course,Article IV, section 22 applies to legislative acts, which would not be published in the voters'pamphlet as they are enacted by the legislature, not the voters. The most natural reading of the publication requirement is that the full act or measure must be set forth at length and made available to the individuals who are to vote on the act or measure. In this case, as noted above, the petition contains the full text of the proposed charter amendment. Such petition with the full text was available to any voter who wanted to Case No. 24CV03746 Opinion and Order Page 2 examine it by virtue of public records laws. ORS 192.311, ORS 192.314, and ORS 250.027. Accordingly, the initiative petition for Chapter X complied with Article IV, section 22. II. Compliance with Chapter X Intervenor submits that the proposed project (an underground sewer line through the west portion of Waluga Park-West, which would connect with an existing sewer line that runs through the eastern portion of the park)violates various provisions of Chapter X. Intervenor makes a number of arguments in this regard. The first main argument surrounds the building of a temporary gravel construction route over which plaintiff's construction vehicles will travel to place the underground sewer line. Paragraph 3, section 43, Chapter X explicitly prohibits the construction or development of "roads. . .for motorized vehicles"within designated parks, and also prohibits the removal of trees for the construction of roads. In a vacuum, the temporary gravel construction route may fall within the dictionary definition of a road, though the temporary nature of the route and the plan to fully restore and mitigate the effects of the route create a serious question. However, once read in context of Chapter X, the drafters must have contemplated temporary access routes as a permitted use. Paragraph 2, section 43 expressly allows trails, benches,picnic and sanitary facilities to be constructed. All those activities would require temporary access for construction equipment and vehicles. Accordingly, the proposed development does not consist of a road that would violate paragraph 3, section 43, Chapter X. The second main argument is that the five or six permanent above ground manholes that will be installed with the sewer line violate paragraph 4, section 43, Chapter X. That paragraph prohibits construction or development of any above ground structure"that would impair or be inconsistent with the natural conditions"of the nature parks. Again, context is important. The Case No. 24CV03746 Opinion and Order Page 3 evidence showed that park currently has eight existing manholes for the existing sewer lines that run through the park. Exhibit 4. The proposed manholes will be approximately 25 inches in diameter and sit above the surface approximately 10 inches. Exhibit 106. The manhole footprint for each manhole is approximately 48 inches. Exhibit 106. Even if the manholes would constitute an above ground structure, they would not impair or be inconsistent with the natural conditions of the park, given that the park already has a significant number of existing manholes. For this reason, the proposed project does not violate paragraph 4, section 43, Chapter X. Intervenors final main argument is that the proposed project runs contrary to the general purposes or spirit of Chapter X. Section 41, the purpose section, states that the purpose of the chapter is to preserve the designated parks as natural areas for the enjoyment of all. The first paragraph of section 43 essentially echoes this language. Intervenor presented substantial evidence and argument about the effect the proposed development would have on the wetlands of the western portion of Waluga Park-West. Had Chapter X directed preservation of wetlands in all circumstances or prohibited development of any sort,this argument would be compelling. However, as noted above, Chapter X allows certain development and allows structures that are not inconsistent with the existing natural conditions of the parks. Accordingly,because the proposed project is consistent with contemplated improvements and current conditions of the park, I do not find that the current development violates the purpose provisions of Chapter X. /// /// /// /// /// Case No. 24CV03746 Opinion and Order Page 4 III. Conclusion For the reasons discussed above, I find that the proposed project does not violate a substantive provision of land use regulations under ORS 227.179(5). Accordingly,the relief sought by intervenors is denied, and the writ of mandamus sought by plaintiff is approved. Counsel for plaintiff should submit the appropriate judgment. C 'Dated: October 16, 2024. ircuit C urt Judge Michael We zel Case No. 24CV03746 Opinion and Order Page 5